### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 21
- 00211
- CR

Jerome Patrick Rumsey , Appellant

v. The State of Texas , Appellee

FROM THE 26TH DISTRICT COURT OF WILLIAMSON COUNTY NO. 20-1424- K26 , THE HONORABLE DONNA GAYLE KING, JUDGE PRESIDIN G

M E M O R A N D U M O P I N I O N
Jerome Patrick Rumsey was charged with the third

- degree -felony offense of stalking and entered an open ple a of guilty to that offense. See Tex. Penal Code § 42.072(a) (defining offense of stalking), (b) (provi d in g that offense is third

- degree felony unless defendant has prior conviction for stalking or certain other offenses). T he district court assess ed Rumsey ’ s punishment at eight years ’ imprisonment. See id. § 12.34. On appeal, Rums ey c ontends that his

se n tence w as an abuse of the district court ’ s discretion and disproportiona te to the seriousness of his offense and , further, that he received in effective assistance from trial counsel

. We will affirm the district court ’s judgment of conviction.2 B ACKGROUND 1 During the plea hearing , the district court recited the felon y charge against Rumsey and explained the applicable range of punishment to him :

The Court: You were indicted on November the 12th of 2020. That indictment alleges that on or about the 11 th day of June, 2020, you did then and there, pursuant to the same scheme or course of conduct directed specifically at Samantha Phillips, knowingly engage in conduct that constituted an offense under Section 42.07 of the Texas Penal Code, namely, sending Sa m antha P hillips and her family over 1,000 texts and sending Samantha Phillips ’ s family and employer nu de images of Samantha Phillips, and your conduct would cause a reasonable person and did cause Samantha Phillips to be placed in fear of bodily injury or d eath or feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended. How do you plea d to that charge, sir? It ’ s a third [

- ] degree felony punishable from two to ten years [ ’ ] confinement in prison and up to a $10,000 fine. What is your p le a?
R

umsey : Guilty, Y our Honor

.
After finding that Rumsey ’ s guilty plea was freely and voluntarily entered a nd that the evidence substantiate d his guilt , the district c ourt conducted a hearing on punishment, w hich was ass essed
at eight years ’ impriso n me nt. Rumsey then filed a motion for new trial asserting that the punishment violated the prohibitions against cruel and unusual punishment in the Eighth Amendment of the United States Constitution and in Article 1, S ection 13 of the Texas Constitution. Th e district court denied the motion

. This appeal f ollowed.

1 Because the parties are familiar with the facts of this case and because there is no challenge to the sufficiency of the evidence supporting Rumsey ’ s c onviction, detailed recitation of the facts underlying h is convict ion is unnecessary to our dispositio n of the appellate issues. See Tex. R. App. P. 47.1.3 D ISCUSSION P unishm ent C omplaints Not Prese rved In his first and second issue s , Rumsey contends that his punishment w as

“ arbitrarily or unreasonably ” imposed and “grossly di sproportional” to th e s eriousness of his offense, in violation of the Eighth Amendment to th e United States Constitution and Article 1, Secti on 13 of the Texas Constitution

. See U.S. Const. amend . VIII ; Tex. Const. art. I, § 13

. The Eighth Amendment states that “ [e]xcessive ba il shall not be required, nor e x cessive fines imposed, nor cruel and unusual punishment inflicted. ” Id

. ; see Robi nson v. California , 370 U.S.
660 , 675 (1962); Meadoux v. State , 325 S. W.3d 189, 193 (Tex. Crim. App. 2010). The Eighth Amendment ’ s prohibi tio ns are made applicable to state

- court p unishments by the Due Process Clause of the Fourteenth Amendm ent. See U.S. Const. amend. XIV ; Robinson , 370 U.S. at 675; Meadoux , 325 S.W.3d at 193. The Texas Constitution similarly pro hibits “ cruel or unusual
pu nis hments

. ” Tex. Const. art. I , § 13. 2

“ A sentencing issue may be preserved by objecting at the punishment hearing, or when the sentenc e is pro nounced. ” Burt v. State , 396 S.W.3d 574, 577 (Tex. Crim. App. 2013).
A defendant “ may raise a sentencing i ssue in a motion for new trial for the fi rst time only if the [defendant] did not have the opportunity to object in the punishment hearing. ” Id. at 577 n.4

. Fai lure to complain a bout an allegedly disproportionate sentence in the trial court forfeits the

error on a ppeal. See, e.g. , Rhoades v. State , 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (concluding that defendant failed to present compl a int tha t his sentence violated Texas

2 “ T he Texas Constitution proscribes ‘ crue l or unusual punishments ’ while the Eighth Amendment prohibi ts ‘ cruel and unusual punishments , ’ ” but the Court of Criminal Appeals has found “ no significance in the difference ” between the phrasing of the se analogous provisions. Cantu v. State , 939 S.W.2d 627, 645 (Tex. Crim. App. 1997). Based on this authority , we consider Rumsey ’ s cruel

- and

- unusual

- punishmen t complaints toge ther

.4 Con stitution ’ s protection against cruel or unusual punishment); Curry v. State , 910 S.W.2 d 490, 497 (Tex. Crim. App. 1995) (concluding that Eighth Amendment complaints are forfeited if not raised in trial court); Willi a ms v. S tate , 191 S.W.3 d 242, 262 (Tex. A pp.

— Austin 2006, no pet.) (noting that “ [c]laims of cruel and unusual punis hment must be presented in a timely manner ” and “ [b]ecause the complaint was not timely made, the claim has been waived ” ); see also
Tex. R. A pp. P. 33.1(a).
Here , Rumsey failed to present any complaint about his sentence

— that his
senten ce was disproporti onate to the seriousness of his offense or v i olative of the United States or Texas Constitutions

— to the distri ct court during the punis hment hearing

. Rumsey do e s not

c ontend , and the record does no t indicate , that he lacked the opportunity to raise such o bject ions to his sentence when it was pronounced during the punishment hearing

. Thus, we conclude that Rumsey failed to preserve his first and second issues fo r our re view. See Tex. R. App. P. 33.1(a).

Ineffective
- A ssi stance
- of
- C ounsel C omplaint s Rel atedl y, Ru msey contends t hat his trial counsel was ineffective for failing to object to the eight

- year sentence as an unconstitutional ly “ c ruel and unusual puni s hm ent

. ” An in effec tiv e - assi stance

- of

- co unsel cla im requ i re s the def endant to prove (1) c ounsel ’ s d e fi cien t performance and (2) pre judice to t he defense

. Strickl and v. W ashi ngton , 466 U.S. 668, 687 (1984) ; Perez v . Stat e , 310 S.W.3d 890, 892

- 93 (Tex. Cri m
. App. 20 10)

. The d ef icient

performance c o m p o n e n t of th e S trickland sta ndard requires the defe ndant t o pr ove by a
prep ond er a nce of the e vidence that his c oun sel ’ s perfo r mance f ell b elow the sta ndard o f prevailing professional norms

. 466 U.S. at 688 ; P er ez , 310 S.W .3d at 893

. Our review of defense co unsel’s performance is “ highly d efer entia l, ” an d ther e is a “strong presu mption” that5 counsel ’ s co nduct f e ll w i th in th e wide r ange of rea sonable professional assistance. Strick land , 466 U.S. at 68 9 ; P er ez , 3 10 S.W .3d at 893

. To rebut th at presump t io n, a def endant’s ineffective

ass ista nce c la im m ust be “fir ml y f ou n ded in the record,” and the recor d “m ust aff i rmati ve ly de monstrat e” t he meri torious na ture of the claim. Menefield v. S ta te , 363 S .W.3d 5 91 , 592 ( Tex.
C rim. A pp. 2012) (quoting Go odspeed v. State , 187 S.W.3d 390, 392 (Tex . C r im. A pp . 20 05) )

. The pr ej u dice component of the Strickland stan dard req uires proof by a
pre pond er ance o f evide nce that but for c ounsel ’ s deficienc y, there i s a rea sonab le pr o babi lity

—

s ufficient to undermin e confi d en ce in the out c ome

— that the result o f the trial would h ave b e e n di ffere nt. 46 6 U.S. at 6 94 ; Perez , 310 S.W.3d at 8 93

. If the deficient performance might have affected a punishment assessment , th e preju dice issue i s whether there is a reasonable probability that, absent the errors, the sentencer would have as sessed a more lenient punishment. See Miller
v. State , 548 S.W.3d 497, 499 (Tex. Crim. App. 2018)

. “ It is n ot enough f or the defendant to show that th e errors had so me conceivab le effect on th e outcome of the proce eding. ” S trickland , 466 U.S. at 6 94 ; Pe rez , 31 0 S. W.3d a t 89 4

. “ F ail ure t o mak e the requir ed showing of either deficien t performance o r suf fici en t prejudice d efeats the ineffe ct ivenes s claim

. ” Stri ckland , 466 U.S. at 7 00 ; see Perez , 310 S.W.3d at 893

. Or di n ar ily, tri al counsel should be a fforded a n opportunity to explain his action s before being denounced as ineffecti ve. Goodspeed , 187 S.W.3d at 392 . W e should not find d eficient perfor mance w i thout a ffording couns el that opport unity unless the chal lenged c onduct

was “ so outrageous that n o compete nt attorney would have engaged in it

. ” Id. ( internal quotation omitted )

. D irect appeal is usually an inadequate vehicle for ra ising a claim o f counse l ’ s ine ffectiveness b ecause the rec ord is generally unde veloped

. Id. When , as here, the record is silen t on the motivations underlying defense counsel ’ s tactical decisions, the defend ant typically6 cannot overcome the strong presumption tha t couns el ’ s con duct was reason able. Mallett v. State , 65 S.W.3d 59, 63 (Tex. C rim. Ap p . 2001)

. A defendant raising an in effective

- assi s tance

- of

- counsel claim ba sed on a failure
to object to a pr onounced sentence must show that if his counsel had obje c ted , th e trial court would ha ve committed harmful err or b y overruling the obje ction. Jacoby v. State , 227 S.W. 3d 128 , 131 (Tex. App.

— Houston [1st Dist.] 2006, pet. ref ’ d) ; Jagaroo v. State , 180 S.W. 3d 793, 800 (Tex. App.

— Houston [14th Dist.] 2005 , pet. r e f ’ d )

. On this record, Rumsey cannot make tha t showing. The eight

- year - imp risonment sent ence that the district court impo sed is within the appl icable two

- to

- ten

- year r ange of punishment for a third

- degree felony offense

. See Tex. Penal Code § 12.34 (providing puni shmen t range of two to ten years ’ i mprisonment for third

- degree felony offenses). Mor eover , d uring t he punis hme nt hearing the district court heard evidence of Rumsey ’ s criminal history, including his 2018 convictions for DWI and for assault family violence com mitted against his wife, Saman tha Phi llips

. Phillips, who was also the victim of Rumsey ’ s stalk ing , testif ied that R umsey :

• despite r eceiv ing inpatient and outpatient mental

- he alth treatment fo r bipolar disorder , sometimes skipped his medication because h e said th at he “ like s the feeling of being ma nic ” ;

• s ent thousan ds of email s to her family and employer con taining her nude p icture next to a picture from a pornographic web site , including an exposed penis , dep icting someone who resembled her ;

• posted th o se pic tures on public web sites and said that he had “ posted them on every credit union in Centr al Texas bec ause he didn ’ t want [her] to ever find a job ” ;

• posted videos to YouT ube , including one sent directly to her stepfather and her cousin, in which R u msey scroll s t hrough all his phone co mmunications with Phillips and show s pictures of her in und erwear or lin gerie ;7 • said to her , “ I ’ m going to bury your corpse ” ;

• abu se d her previously , including incidents when she was holding their child in h er arms and wh en she was pregnant with th at c hild ; and

• was subject to protective ord er s tha t she sought and obtained ag ain st hi m.
Phillips further testified t hat that she feared Rumsey would try to kill her and their child, that her

e mployer provided polic e securit y outside her home temporarily , and that she later moved away

. O nce Rumsey was in custody, Phill ips was “ no t lo o king over her shoulder or checking the back seat of [her] car to see if he ’ s there

. ” S he testified that no thing short of Rumsey ’ s remaining in

cus tody or prison would make her feel safe every day

. Ad ditionally, t he d istrict court h eard evidence fro m Rumsey ’ s relative s that Rumsey committed the stalking offense while living in a garage apartment “ right next to ” his uncle , who had daily contac t wi th Rumsey but was unaware of Rumsey ’ s behavior

. Rumsey ’ s expert witness t estified that as to the stalking offense : Rumsey “ knew what he was doing was
wrong ” ; his be havior would have continued “ had he not been arreste d ” ; and even on medications, Rumsey ’ s stability was not entirely predictable

. As noted, t he eight

- year - imp risonment sent ence tha t the district court imposed is within the appl icable r ange of punishment for a third

- degree felony offense

. See id. § 12.34

. When “ th e punishment assessed b y the judge

. . . was within the limits prescribed by the statute the punishment is not cruel and unusual within the constitutional prohibition. ” Samu el v. S t ate , 477 S.W.2d 611, 614 (Tex. Cr im. App. 1972)

. Rumsey ’ s s entenc e falls within the statutory
li mits , and on this silent record, we cannot conclude that defense c ouns el ’ s lack of object ion to
t he pro no unced s entence fell be l ow the standard of profession al n orms or that h er conduct was “so outrageous that no competent attorne y would h ave engaged in it

. ” See Goodspeed ,8 187 S.W. 3d at 392 ; Gavin v. State , 404 S.W.3d 597, 606

- 07 (Tex. App.

— Houston [ 1st Dist.]
2 010 , no pet .) ( concluding that because se ntence assessed was within statutory lim its , trial

counse l ’ s failure to object t o sentenc e as cruel and un usual did not constitute in effective assistance of counsel); Jag aroo , 180 S.W.3d at 801 ( determin ing that sent en ce wi t hi n punishme nt range was not crue l and unusual and stat ing that counsel is not ineffective by refraining from “ ma king fri volous arguments and objections ” )

. Nor can we conclude that if defense counsel had objected to the pr onounced sen tence , the dist rict court would have committed harmful error by overruling the objection. See Jacoby , 227 S.W.3 d at 131 ; Jagaroo , 180 S.W.3d at 800

. W e overr ule Rumsey ’ s third iss ue
. Lastly, Rumsey contends that defense counsel was ineffective for not filing a moti on to quas h the indictment a lleg ing sta lking un der sub s ection 42.072(a) of the P enal Code because th at provision of the stalking st atute incorpora t es language from the harassment statute
in subsecti on 42.07(a)(7) that is “ unconstitutionally va gue and overbro ad , ” in violation of the First Amendment. We disagr ee. Befo re Rumsey entere d his plea on March 3, 2021 , we issued an opinion reject ing
conte n tions that the harassment statute in subsect ion 42.07(a)(7) was unconst it utionally vague and over broad in vio lat ion of the First Amendment

. Ex parte McDonald , 606 S.W.3d 856 , 862

- 64 (Tex. App.

— Austin 2020, pet. ref ’ d ). Had defe nse counsel filed a motion to quash on the ground s Rumsey alleges here , she would have requested a ruling from the district court
contr a ry to our controlling p recedent in Mc Donald

. Declining to file s uch a motion

— which would have been unsuccessful under M cDonald

— did not fall below the objective standard of9 reasonableness because “ [ c ] ounsel is not required to engage in the fili ng of futile mo tions

. ” 3 See Mooney v. State , 817 S.W.2d 693, 698 (Tex. Crim. App. 1991) ; Hollis v. State , 219 S.W.3d 446, 456 (Tex. App.

— Austin 2007 , no pet. )

. Contrary to Rumsey ’ s First Amendment ar gument s , t he indictment was legally sufficient. When a n indictment is legally s ufficient, t rial counsel is not ineffective for fail ing to file a motion to quash or object to the indictment

. See Thacker v. State , 999 S.W.2d 56, 67 (Tex. App.

— Houston [14th Dist.] 1999, pet. ref’d). W e overrule R umsey ’ s fourth issue.

CONCLUS ION We affirm the district court ’ s judgmen t of conviction.

__________________________________________ Darlene Byrn e , Chief Justi ce Before Chief Justi ce Byr n e , Just ices Kelly and Smith Affirmed Filed: August 1 7 , 2022
Do No t Publish

3 T he Court of Criminal Appeals later rejected similar First Amendment challenges to subsection 42.07(a)(7) of the Penal Cod e
. Ex parte Barton , No. PD

- 1123

- 19, 2022 Tex. Crim. App. LEXIS 235, at *17 (T ex. Crim. App. Apr. 6, 2 022) (“Since § 42.07(a)(7) does not regulate speech, and therefore does not implicate the free

- speech guarantee of the First Amendment, the statute is not susceptible to an overbreadth challenge ” and further , “ [a] s a regulation of n on speech conduct, § 42.07(a)(7) is no t facially unconstitutional because it is rationally related to a legitimate governmental interest.”); Ex parte Sanders , No. PD

- 0469

- 19, 202 2 Tex. Crim. App. LEXIS 236, at *35 (Tex. Crim. App. Apr. 6, 2022) (“We hold t hat on its face, § 42.07(a)(7), the el ectronic harassment statute, proscribes non

- speech conduct that does not implicate the protections of the First Amendment, although elem ents of speech may be employed to commit the offense.”).